EXHIBIT 9.1
XXXX CALL
VOTING TRUST AGREEMENT
(RE: XXXX, XXXXXX & ASSOCIATES, INC.)
THIS AGREEMENT is entered into and effective this 15th day of January,
1996, between and among the following persons all of whom are shareholders of
XXXX, XXXXXX & ASSOCIATES, INC., a California corporation (hereinafter referred
to as the "Corporation"): XXXX XXXXXXX CALL; XXXX XXXXXXX CALL as custodian for
XXXXXXX XXXX under the California Uniform Transfers to Minors Act; XXXX XXXXXXX
CALL as custodian for XXXXX XXXX under the California Uniform Transfers to
Minors Act; XXXXXXXXX XXXX; XXXXXX XXXXX XXXX XXXXXX; XXXXX XXXX CALL; XXXXXX
CALL XXXXXXX; XXXX XXXXXX CALL; XXXXXXXX CALL XXXXXX; XXXXX XXXXX CALL; XXXXXX
CALL XXXXXXX; and XXXXXX CALL XXXXXX (hereinafter referred to as "Shareholders"
and sometimes as "Certificate Holders"); and XXXXXX XXXX and XXXXXX XXXX
(hereinafter referred to as "Trustees").
1. EXCHANGE OF SHARES FOR VOTING TRUST CERTIFICATES.
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a. Simultaneously with execution of this Agreement, the
Shareholders shall deliver to the Trustees properly endorsed certificates for
the number of common shares of the Corporation shown opposite their respective
names below (hereinafter referred to as the "Shares"). The Trustees shall hold
the Shares transferred to them in trust, subject to the terms of this Agreement.
The Shareholders shall have no right to withdraw their Shares prior to
termination of this Agreement as hereinafter provided.
b. The Trustees shall cause the Shares to be transferred to
them on the Corporation's books and records and shall issue and deliver to each
of the Shareholders a voting trust certificate, in the form shown in Exhibit A
to this Agreement, for the number of shares transferred to the Trustees.
2. TRUSTEES' POWERS ANAL DUTIES.
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a. VOTING OF SHARES. During the existence of this trust, the
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Trustees shall have the exclusive right to vote all Shares transferred to them
in person or by proxy at all shareholder meetings and in all proceedings in
which the vote or consent of shareholders may be required or authorized, and
shall have all the rights, privileges, and powers of shareholders except as
otherwise provided in this Agreement. With respect to the election of the
Corporation's directors, and as to all other matters of any character whatsoever
on which a shareholder vote or approval is required by the articles or bylaws of
the Corporation or as a matter of law, or which is submitted to the shareholders
for approval, the Trustees shall exercise such voting rights as they determine
in the sound exercise of their discretion.
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b. NUMBER AND PERCENTAGE VOTE. The number of Trustees under
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this Agreement shall be two. The Trustees shall act by unanimous vote in
exercising any powers or taking any action under this Agreement.
c. OTHER TRUSTEE ACTIVITIES. The Trustees may also be parties
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to this Agreement as share owners holding voting trust certificates.
Additionally, they may serve the Corporation as officers or directors or in any
other capacity, and may receive compensation from the Corporation for such
services.
d. SALE OF SHARES. The Trustees shall have no authority to
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sell or otherwise dispose of any shares transferred to them under this
Agreement; provided, however, Certificate Holder may require that all or a
portion of his or her Shares be sold by the Trustees (i) only in accordance with
prior written instructions from the Certificate Holder and (ii) only after or in
conjunction with an initial public offering of the Corporation's shares or in
the event of a sale of all or substantially all of the business of the
Corporation. In the event of a sale of Shares in accordance herewith, and in
exchange for the net sales proceeds from the sale of said Shares, the
Certificate Holder shall surrender to the Trustees his or her voting trust
certificate properly endorsed.
e. COMPENSATION. The Trustees shall receive no compensation
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for their services except for reimbursement, by the Certificate Holders, of
expenses incurred in the administration of their duties. However, this
paragraph shall not affect the right of any Trustee to compensation from the
corporation for services performed on its behalf in some other capacity (as
officer, director, employee or otherwise).
f. TRUSTEES' LIABILITY. The Trustees, and each of them, shall
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not be liable for any error of judgment or mistake of fact or law, or for any
act or omission made in good faith in connection with their powers and duties
under this Agreement, except for each Trustee's own willful misconduct or gross
negligence. No Trustee shall be liable for the acts or omissions of any other
Trustee or Trustees or for the acts or omissions of any employee or agent of any
other Trustee or Trustees. The Trustees, and each of them, shall not be liable
in acting on any notice, consent, certificate, instruction, or other paper or
document or signature believed by them to be genuine and to have been signed by
the proper party or parties. The Trustees may consult with legal counsel, and
any of their acts or omissions made in good faith in accordance with the opinion
of legal counsel shall be binding and conclusive on the parties to this
Agreement.
g. REPLACEMENT OF TRUSTEES. Any Trustee may be removed from
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office by the vote of holders of voting trust certificates representing at least
two-thirds (2/3rds) of the beneficial interests. In case of a Trustee's death,
resignation, or inability to act, the remaining Trustee shall act as the sole
Trustee. If there are no incumbent Trustees, the holders of voting trust
certificates representing at least two-thirds (2/3rds) of the beneficial
interests shall elect two Successor Trustees.
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3. TERMINATION.
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a. This Agreement shall terminate five (5) years after the
effective date of this Agreement or on any later date to which the term is
extended, as provided below, without notice by or to, or action on the part of,
the Trustees or the Certificate Holders.
b. This Agreement may be terminated at an earlier date by the
vote or written consent of Certificate Holders representing one hundred percent
(100%) of the shares subject to this Agreement, upon ten days' written notice to
the Trustees.
c. As soon as practicable after termination of this Agreement,
the Trustees shall redeliver share certificates representing the appropriate
number of shares, properly endorsed for transfer, to the respective Certificate
Holders of record, and the Certificate Holders shall surrender to the Trustees
their voting trust certificates properly endorsed, together with payment of sums
sufficient to cover any taxes and other expenses relating to the transfer or
delivery of the share certificates.
d. If any Certificate Holder refuses to surrender voting trust
certificates in exchange for shares, or cannot be located, the Trustees may
deliver the share certificates due that Certificate Holder to any bank or trust
company in California, or to the Secretary of the Corporation, for the benefit
of the person or persons entitled thereto, and thereupon shall be fully
discharged with respect to those share certificates.
4. EXTENSION OF AGREEMENT.
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a. The term of this Agreement, as prescribed in Paragraph 3,
may be extended from the original termination date of this Agreement or from the
termination date as last extended in accordance with this paragraph, provided
that within two years before the date as originally fixed or as last extended,
one or more Certificate Holders, by written agreement, and with the Trustees'
written consent, extend the term of this Agreement with respect to their shares
for an additional term not to exceed ten years from the expiration date then in
effect.
b. In the event of extension, duplicate copies of this
Agreement and of the extension agreement shall be filed with the secretary of
the Corporation and shall be open for inspection on the same conditions as the
Corporation's record of shareholders.
5. WITHDRAWAL OF SHARES.
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No Certificate Holder may withdraw his or her shares from this
Agreement until termination of this Agreement or unanimous consent of the
Certificate Holders. Upon withdrawal of shares, the Certificate Holder shall
surrender his or her voting trust certificates to the Trustees. The Trustees
shall deliver the withdrawn shares properly endorsed for transfer as in the case
of termination under Paragraph 3 above.
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6. NOTICES. DIVIDENDS, AND DISTRIBUTIONS.
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a. The Trustees shall promptly forward copies of all notices,
reports, statements, and other communications received from the Corporation to
the Certificate Holders, indicating the date of receipt.
b. The Trustees shall promptly distribute all dividends and
other distributions received from the Corporation to the Certificate Holders in
proportion to their respective interests.
c. If any dividend or stock split consists of additional shares
having voting rights, the Trustees shall hold these shares in trust subject to
the terms of this Agreement, and shall issue new voting trust certificates,
representing the additional shares, to the Certificate Holders in proportion to
their respective interests.
7. VENTURE CAPITAL FINANCING.
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The Shares subject to this Agreement shall be subject to all the
terms, conditions, and covenants required by any venture capital, bank, or other
financing which the Corporation may obtain.
8. NAME OF TRUST.
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The trust created by this instrument shall be referred to as the
XXXX CALL VOTING TRUST.
9. GOVERNING LAW.
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It is the parties' intention that this Agreement meet the
statutory requirements of California Corporations Code (S)706(b) and that this
Agreement be construed in accordance therewith and under the laws of the State
of California. If any action or proceeding is brought arising out of, in
connection with, or by reason of this Agreement, the laws of the State of
California shall apply and shall govern to the exclusion of the law of any other
forum, without regard to the jurisdiction in which any action or proceeding may
be initiated.
Dated: January 15, 1996
TRUSTEES
/s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxx
___________________________________ __________________________
XXXXXX XXXX XXXXXX XXXX
SHAREHOLDERS & NUMBER OF SHARES DEPOSITED:
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CERTIFICATE HOLDERS:
/s/ Xxxx Xxxxxxx Call 33,333
___________________________________
XXXX XXXXXXX CALL
/s/ Xxxx Xxxxxxx Call 33,333
___________________________________
XXXX XXXXXXX CALL as Custodian for
XXXXXXX XXXX under the California
Uniform Transfers to Minors Act
/s/ Xxxx Xxxxxxx Call 33,333
___________________________________
XXXX XXXXXXX CALL as Custodian for
XXXXX XXXX under the California
Uniform Transfers to Minors Act
/s/ Xxxxxxxxx Xxxx 33,333
___________________________________
XXXXXXXXX XXXX
33,333
/s/ Xxxxxx Xxxxx Xxxx Xxxxxx
___________________________________
XXXXXX XXXXX XXXX XXXXXX
33,333
/s/ Xxxxx Xxxx Call
___________________________________
XXXXX XXXX CALL
/s/ Xxxxxx Call Xxxxxxx 33,333
___________________________________
XXXXXX CALL XXXXXXX
/s/ Xxxx Xxxxxx Call 33,333
___________________________________
XXXX XXXXXX CALL
/s/ Xxxxxxxx Call Xxxxxx 33,333
___________________________________
XXXXXXXX CALL XXXXXX
/s/ Xxxxx Xxxxx Call 33,333
___________________________________
XXXXX XXXXX CALL
/s/ Xxxxxx Call Xxxxxxx 33,333
___________________________________
XXXXXX CALL XXXXXXX
/s/ Xxxxxx Call Barnet 33,333
___________________________________ ------
XXXXXX CALL BARNET
TOTAL 399,996
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XXXX CALL
VOTING TRUST AGREEMENT
(RE: XXXX, XXXXXX & ASSOCIATES, INC.)
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Certificate No. ___________
___________ Shares
This certifies that the undersigned Trustees have received
certificates for shares of common stock of XXXX, XXXXXX & ASSOCIATES, INC.
(Corporation) from ________________ (Shareholder), and that the Trustees hold
these shares subject to the terms and conditions of the Xxxx Call Voting Trust
Agreement (the Agreement) entered into as of January 15, 1996 between and among
XXXX XXXXXXX CALL; XXXX XXXXXXX CALL as custodian for XXXXXXX XXXX under the
California Uniform Transfers to Minors Act; XXXX XXXXXXX CALL as custodian for
XXXXX XXXX under the California Uniform Transfers to Minors Act; XXXXXXXXX XXXX;
XXXXXX XXXXX XXXX XXXXXX; XXXXX XXXX CALL; XXXXXX CALL XXXXXXX; XXXX XXXXXX
CALL; XXXXXXXX CALL XXXXXX; XXXXX XXXXX CALL; XXXXXX CALL XXXXXXX; and XXXXXX
CALL XXXXXX (Shareholders; Certificate Holders); and XXXXXX XXXX and XXXXXX XXXX
(Trustees). This certificate is Exhibit A to the Agreement. A copy of the
Agreement is on file with the secretary of the Corporation.
1. During the term of the Agreement, the Trustees shall be entitled
to vote the shares covered by this certificate and to exercise only those
rights, privileges, and powers of shareholders as provided in the Agreement.
2. During the term of the Agreement, the Shareholders shall be
entitled to all the benefits of the Agreement, and shall be subject to the terms
and conditions arising from the deposit of their shares with the Trustees in
accordance with the Agreement.
3. This certificate is assignable, and a new certificate shall be
issued only upon surrender to the Trustees of this certificate properly
endorsed.
4. Upon termination of the Agreement, and subject to the terms and
conditions of the Agreement, the Trustees shall deliver to the Certificate
Holders properly endorsed share certificates representing the number of shares
owned by each Certificate Holder, and the Certificate Holders shall surrender
their voting trust certificates to the Trustees, properly endorsed, together
with payment of a sum sufficient to cover any taxes and other expenses relating
to the transfer or delivery of the share certificates.
Dated: _________________________
____________________________________ _____________________________
XXXXXX XXXX, Trustee XXXXXX XXXX, Trustee
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